Supreme Court of India
POSURAM DESHMUKHversusSTATE OF CHHATTISGARH
- Citation
- 2009 INSC 475
- Decided
- 9 April 2009
- Disposal
- Appeal(s) allowed
- Bench
- ARIJIT PASAYAT
Holding
The killing falls within Exception 4 to Section 300 IPC, so the conviction is altered to Section 304 Part I with a ten‑year sentence.
Summary
The appellant Posuram Deshmukh (Posu) and a co‑accused attacked Hiralal, who was blocking a watercourse, with a chatwar and a lathi during an altercation over water rights. Hiralal sustained fatal injuries and died en route to the hospital. The trial court convicted Posu under Section 302 read with Section 34 IPC, a conviction upheld by the Chhattisgarh High Court. On appeal, the Supreme Court examined whether the killing fell within Exception 4 to Section 300 IPC, which requires a sudden fight without pre‑meditation, undue advantage, or cruelty. The Court held that the facts satisfied all the ingredients of Exception 4, and therefore the appropriate charge was culpable homicide not amounting to murder under Section 304 Part I, with a ten‑year imprisonment. The appeal was allowed in part, altering the conviction and sentence.
Issues considered
- Whether the killing constitutes a 'sudden fight' falling under Exception 4 to Section 300 IPC
- Whether the appellant took undue advantage or acted in a cruel or unusual manner
- Whether conviction under Section 302 IPC read with Section 34 is appropriate
Legislation cited
- Indian Penal Code, 1860s. 300, s. 302, s. 304, s. 34
Subjects
IPCmurderculpable homicide not amounting to murderException 4sudden fightpremeditationundue advantagecriminal law
Judgment
[2009] 5 S.C.R. 807
POSURAM DESHMUKH A
II.
STATE OF CHHATTISGARH
(Criminal Appeal No. 697 of 2009)
• APRIL 9, 2009
B
[DR. ARIJIT PASAYAT AND ASOK KUMAR
GANGULY, JJ.]
Penal Code, 1860:
c
s. 304, Part I - Sudden quarrel - Armed assault causing
death - Conviction uls.302 by trial court - Upheld by High
Court - Propriety of - Held: Not proper - Conviction altered
to uls.304 Part I with custodialsentence of 10 years.
s.300, Exception 4 - Applicability of,· points of distinction D
and similarities with Exception 1 - Discussed.
~
Words and Phrases - 'sudden fight', 'undue advantage'
and 'unfair advantage' - Meaning of.
E
According to the prosecution, PW 1 and her father-
in-law were in their agricultural field trying to block the
course of water when accused-appellant alongwith a co-
accused came there and tried to stop them, on which an
altercation ensued between the parties. The appellant
F
who was armed with a 'chatwar' (a stick fitted with a
square iron plate at the end) and the co-accused who
was armed with a lathi assaulted the father-in-law of PW1
'l\;
,.. and caused injuries on his body which proved fatal. The
Trial court convicted the appellant under s.302 rlw s.34
IPC. The High Court did not accept the stand taken by G
~ the appellant that the incident had taken place in course
-1,
of sudden quarrel and upheld the order passed by the
trial Court.
807 H
808 SUPREME COURT REPORTS [2009] 5 S.C.R.
A In appeal to this Court, it was contended that even if
the prosecution version was accepted in its totality, case
under s.302 IPC was not made out.
Partly allowing the appeal, the Court
B HELD: 1.1. For bringing in operation of Exception 4
to Section 300 IPC it has to be established that the act
was committed without premeditation, in a sudden fight
in the heat of passion upon a sudden quarrel without the
offender having taken undue advantage and not having
c acted in a cruel or unusual manner. [Para 6] [812-E-F]
1.2. The Fourth Exception of Section 300, IPC covers
acts done in a sudden fight. The said exception deals
with a case of prosecution not covered by the first
D exception, after which its place would have been more
appropriate. The exception is founded upon the same
principle, for in both there is absence of premeditation.
But, while in the case of Exception 1 there is total
deprivation of self-control, in case of Exception 4, there
is only that heat of passion which clouds men's sober
E
reasons and urges them to deeds which they would not
otherwise do. There is provocation in Exception 4 as in
Exception 1; but the injury done is not the direct
consequence of that provocation. In fact Exception 4
deals with cases in which notwithstanding that a blow
F may have been struck, or some provocation given in the
origin of the dispute or in whatever way the quarrel may
have originated, yet the subsequent conduct of both
parties puts them in respect of guilt upon equal footing. ... ~
[Para 7] [812-F-H; 813-A-B]
G
1.3. A 'sudden fight' implies mutual provocation and
blows on each side. The homicide committed is· then •
clearly not traceable to unilateral provocation, nor in such
cases could the whole blame be placed on one side. For
H if it were so, the Exception more appropriately applicable
POSURAM DESHMUKH v. STATE OF CHHATIISGARH 809
j
would be Exception 1. There is no previous deliberation A
or determination to fight. A fight suddenly takes place, for
which both parties are more or less to be blamed. It may
be that one of them starts it, but if the other had not
aggravated it by his own conduct it would not have taken
., the serious turn it did. There is then mutual provocation B
and aggravation, and it is difficult to apportion the share
of blame which attaches to each fighter. The help of
Exception 4 can be invoked if death is caused (a) without
premeditation, (b) in a sudden fight; (c) without the
offender's having taken undue advantage or acted in a c
cruel or unusual manner; and (d) the fight must have
been with the person killed. To bring a case within
Exception 4 all the ingredients mentioned in it must be
found. It is to be noted that the 'fight' occurring in
Exception 4 to Section 300, IPC is not defined in the IPC.
D
It takes two to make a fight. Heat of passion requires that
there must be no time for the passions to cool down and
in this case, the parties had worked themselves into a
fury on account of the verbal altercation in the beginning.
[Para 7) [813-B-F]
E
1.4. A fight is a combat between two and more
persons whether with or without weapons. It is not
possible to enunciate any general rule as to what shall
be deemed to be a sudden quarrel. It is a question of fact
and whether a quarrel is sudden or not must necessarily F
depend upon the proved facts of each case. For the
application of Exception 4, it is not sufficient to show that
there was a sudden quarrel and there was no
premeditation. It must further be shown that the offender
has not taken undue advantage or acted in cruel or G
unusual manner. The expression 'undue advantage' as
used in the provision means 'unfair advantage'. [Para 7)
~ "' [813-F-H; 814-A]
Dhirajbhai Gorakhbhai Nayak v. State of Gujrat 2003 (5)
I H
810 SUPREME COURT REPORTS [2009] 5 S.C.R.
A Supreme 223; Parkash Chand v. State of H.P. 2004 (11)
SCC 381; Byvarapu Raju v. State of A.P. and Anr. (2007) (11)
SCC 218 and Hawa Singh and Anr. v. State of Haryana (SLP
(Crl.) No. 1515/2008 disposed of on 15.1.2009), relied on.
2. In the present case, when the background facts are
8
considered in the light of legal position elaborated above,
the inevitable conclusion is that in the present case
Exception 4 to Section 300 IPC applies. That being so, the
appropriate conviction would be under Section 304 Part
I, IPC. The conviction is altered accordingly. Custodial
C sentence of 10 years would meet the ends of justice.
[Paras 8 and 9] [814-8-D]
Case Law Reference:
2003 (5) Supreme 223 Para 7 relied on
D
2004 (11) sec 381 Para 7 relied on
2001 (11) sec 218 Para 7 relied on
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
E No. 697 of 2009.
From the Judgment & Order dated 9.82007 of the High
Court of Chattisgarh at Bilaspur in Criminal Appeal No. 1078
of 2002.
F
Sanjeev Anand and Dibya Nishant for the Appellants.
Aniruddha P. Mayee, Sanjeev Kr. Chudhary and R.A.
Mayee for the Respondents.
G The Judgment of the Court was delivered by
DR. ARIJIT PASAYAT, J. 1. Leave granted.
..
2. Challenge in this appeal is to the judgment of a Division
H
POSURAM DESHMUKH v. STATE OF CHHATIISGARH 811
[DR. ARIJIT PASAYAT, J.]
Bench of the Chhattisgarh High Court upholding the conviction A
of the appellant for offence punishable under Section 302 read
with Section 34 of the Indian Penal Code, 1860 ( in short the
'IPC'). Four persons faced trial for alleged commission of the
aforesaid offence. Out of them two were found guilty by Special
Judge & Additional Sessions Judge, Durg. Co-accused B
Puranlal and Prahlad were acquitted.
3. Prosecution version in a nutshell is as follows:
On 19-9-2000 Hiralal (hereinafter referred to as the
'deceased') along with Dhaneshwari (PW-1) went to his c
agricultural field at about 10 a.m. for blocking the water course.
When Hiralal and Dhaneshwari were busy blocking the water
course, accused Badku @ Kamal and Posu came near Hiralal
and asked Hiralal not to block the water course, on which.
Hiralal said that if he will not block the water course, then water D
will not come to his field and his field will become dry. On that,
some altercation took place between them. At that time
accused Posu was carrying Chatwar (a square iron plate fitted
i at the one end of the stick) accused Badku was carrying lathi.
Both of them started attacking with those weapons. When E
Dhaneshwari, daughter-in-law of Hiralal came to intervene, the
accused persons pushed her as a result of which her glass
bangles broke and she sustained abrasions. Blood started
oozing out of the injuries sustained by Hiralal. He fell down on
j
the field. The accused persons fled from the scene of F
occurrence. Dhaneshwari went to the village and informed her
sister-in-law Bhanbai and the villagers. She informed her
brother-in-law also. Thereafter, ·she along with her brother-in-
law took Hiralal to the Out Post Anjora, P.S. Pulgaon. She
lodged a report Ex.P/1. When Hiralal was being taken for
G
examination to the Government Hospital, Durg he succumbed
- ~
to the injuries on the way. Certificate Ex.P/18 was given by the
doctor and based on that intimation Ex.P/30 was written. Based
on the report Ex.P/1 Police Station, Pulgaon registered FIR
Ex.P/31.
H
812 SUPREME COURT REPORTS [2009] 5 S.C.R.
A During the investigation accused Badku gave ·
memorandum Ex.P/8, in pursuance of that he get recovered
bamboo club under Ex.P/10. Accused Posu gave
memorandum Ex.P/9 in pursuance of that Chatwar, a square
iron plate fitted at the one end of the stick was seized under
B Ex.P/11.
4. After investigation, charge sheet was filed. As the.
accused persons pleaded innocence, trial was held. Twelve
witnesses were examined to further the prosecution version.
PW-1 was an injured witness. The trial Court placed reliance
C on the evidence of eye witnesses and found the appellant guilty.
Questioning the conviction, the appellant preferred an appeal
-
before the High Court. The stand taken before the High Court
that the occurrence took place in course of sudden quarrel was
not accepted. The appellant has filed this appeal primarily on
D the ground that even if the prosecution version is accepted in
its totality, case under Section 302 IPC is not made out.
5. Learned counsel for the respondent-State on the other
E
hand supported the judgment of the High Court. r
6. For bringing in operation of Exception 4 to Section 300
IPC it has to be established that the act was committed without
premeditation, in a sudden fight in the heat of passion upon a
sudden quarrel without the offender having taken undue
advantage and not having acted in a cruel or unusual manner.
F
7. The Fourth Exception of Section 300, IPC covers acts
done in a sudden fight. The said exception deals with a case
of prosecution not covered by the first exception, after which
its place would have been more appropriate. The exception is
G founded upon the same principle, for in both there is absence
of premeditation. But, while in the case of Exception 1 there is
total deprivation of self-control, in case of Exception 4, there is
only that heat of passion which clouds men's sober reasons and
urges them to deeds which they would not otherwise do. There
H is provocation in Exception 4 as in Exception 1; but the injury
POSURAM DESHMUKH v. STATE OF CHHATTISGARH 813
.J
[DR ARIJIT PASAYAT, J.]
done is not the direct consequence of that provocation. In fact A
Exception 4 deals with cases in which notwithstanding that a
blow may have been struck, or some provocation given in the
origin of the dispute or in whatever way the quarrel may have
originated, yet the subsequent conduct of both parties puts them
in respect of guilt up9n equal footing. A 'sudden fight' implies B
mutual provocation and blows on each side. The homicide
committed is then clearly not traceable to unilateral provocation,
nor in such cases could the whole blame be placed on one
side. For if it were so, the Exception more appropriately
- applicable would be Exception 1. There is no previous
deliberation or determination to fight. A fight suddenly takes
place, for which both parties are more or less to be blamed. It
c
may be that one of them starts it, but if the other had not
aggravated it by his own conduct it would not have taken the
serious turn it did. There is then mutual provocation and
D
aggravation, and it is difficult to apportion the share of blame
which attaches to each fighter. The help of Exception 4 can be
invoked if death is caused (a) without premeditation, (b) in a
sudden fight; (c) without the offender's having taken undue
advantage or acted in a cruel or unusual manner; and (d) the
E
fight must have been with the person killed. T'O bring a case
within Exception 4 all the ingredients mentioned in it must be
found. It is to be noted that the 'fight' occurring in Exception 4
to Section 300, IPC is not defined in the IPC. It takes two to
make a fight. Heat of passion requires that there must be no
time for the passions to cool down and in this case, the parties F
had worked themselves into a fury on account of the verbal
altercation in the beginning. A fight is a combat between two
and more persons whether with or without weapons. It is not
possible to enunciate any general rule as to what shall be .
deemed to be a sudden quarrel. It is a question of fact and G
. ..
whether a quarrel is sudden or not must necessarily depend
upon the proved facts of each case. For the application of
Exception 4, it is not sufficient to show that there was a sudden
quarrel and there was no premeditation. It must further be
shown that the offender has not taken undue advantage or acted H
.
814 SUPREME COURT REPORTS [2009] 5 S.C.R.
A in cruel or unusual manner. The expression 'undue advantage'
as used in the provision means 'unfair advantage'. These
aspects have been highlighted in Dhirajbhai Gorakhbhai
Nayak v. State of Gujrat (2003 (5) Supreme 223], Parkash
Chand v. State of H.P; (2004 (11) SCC 381 ), Byvarapu Raju
8 v. State of A. P. and Anr. (2007 (11) sec 218) and Hawa
Singh and Anr. v. State of Haryana (SLP (Crl.) No.1515/2008
disposed of on 15.1.2009).
8. When the background facts are considered in the light
of legal position elaborated above, the inevitable conclusion is
C that in the present case Exception 4 to Section 300 IPC
applies. -
9. That being so, the appropriate conviction would be
under Section 304 Part I, IPC. The conviction is altered
D accordingly. Custodial sentence of 10 years would meet the
ends of justice.
10. The appeal is allowed to the aforesaid extent.
8.8.8. Appeal allowed.
.
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